Louis Warren (a pseudonym)[1] v The Queen - [2017] VSCA 35

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0071

LOUIS WARREN (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

---

JUDGES:	WEINBERG, WHELAN and FERGUSON JJA
WHERE HELD:	MORWELL
DATE OF HEARING:	20 February 2017
DATE OF JUDGMENT:	3 March 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 35
JUDGMENT APPEALED FROM:	DPP v Warren (a pseudonym) (Unreported, County Court of Victoria, Judge Cannon, 27 August 2015 (Conviction))

---

CRIMINAL LAW – Conviction – Applicant convicted of five charges of indecent assault and three charges of incest – Complainant was applicant’s step-daughter – Verdicts said to be unreasonable and/or not supported by the evidence – Verdicts of guilty on two indecent assault charges said to be inconsistent with verdict of not guilty on rape charge – Verdict said to be unsafe by reason of forensic disadvantage suffered by applicant – Whether trial judge erred in failing to include all necessary matters in forensic disadvantage direction – Open to jury to accept complainant’s evidence as credible – Plausible explanation for acquittal on rape charge – Trial judge’s forensic disadvantage direction adequate – Leave to appeal refused.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C F Thomson	Slades & Parsons Solicitors
For the Crown	Mr B Kissane QC with Ms D Piekusis	Mr J Cain, Solicitor for Public Prosecutions

WEINBERG JA
WHELAN JA
FERGUSON JA:

The applicant stood trial in the County Court at Melbourne, charged with various sexual offences against his step-daughter, ‘NP’. On 27 August 2015, he was convicted of five charges of indecent assault (charges 1, 2, 4, 5 and 6), and three charges of incest (charges 7, 8 and 9). These offences were said to have been committed between 1 April 1988 and 14 March 1990. NP was, at the relevant time, aged between nine and 11. The applicant was acquitted on charge 3, which was a charge of rape.

Proposed grounds of appeal

In the present matter, the applicant seeks leave to appeal against conviction upon the following grounds:

1.The verdicts are unreasonable and cannot be supported having regard to the evidence.
2.The not guilty verdict on Charge 3 of rape was inconsistent with the other guilty verdicts as the prosecution case depended on the credibility of the applicant.
3.The significant forensic disadvantage suffered by the applicant led to a substantial miscarriage of justice.

Circumstances surrounding the commission of the offences

In setting out the circumstances surrounding the commission of the offences, it will be convenient to summarise, in part, various passages from the Registrar’s Neutral Summary.

NP’s evidence

NP gave evidence that she was the second oldest of eight children, and the applicant’s stepdaughter. The applicant and NP’s mother (‘KP’) married in April 1988, when NP was aged about nine. The family lived in Broadmeadows.

NP said that the applicant first engaged in sexual contact with her when…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Louis Warren (a pseudonym)[1] v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] VSCA 35
Decision Date: 3 March 2017

CaseChat Overview and Summary

The case involved the applicant, Louis Warren, who was convicted of five charges of indecent assault and three charges of incest. The victim in this case was Warren's step-daughter. The applicant challenged the verdicts on the grounds that they were unreasonable and not supported by the evidence. Warren also claimed that the verdicts on two indecent assault charges were inconsistent with the verdict of not guilty on the rape charge. Furthermore, Warren argued that the verdict was unsafe due to a forensic disadvantage that he experienced. The High Court of Australia was tasked with determining whether the trial judge erred in failing to include all necessary matters in the forensic disadvantage direction, and whether it was open to the jury to accept the complainant's evidence as credible. Additionally, the court needed to assess if there was a plausible explanation for the acquittal on the rape charge and whether the trial judge's forensic disadvantage direction was adequate.

The court found that the trial judge's direction regarding the forensic disadvantage was sufficient. The judge had adequately informed the jury about the disadvantage and its impact on the case. The court also held that it was open to the jury to accept the complainant's evidence as credible, even in the face of the forensic disadvantage. Furthermore, the court found that there was a plausible explanation for the acquittal on the rape charge, which did not necessarily conflict with the convictions on the other charges. The verdicts were deemed to be reasonable and supported by the evidence presented.

In light of the above findings, the court dismissed Warren's appeal. The court found that the trial judge had not erred in their direction to the jury regarding the forensic disadvantage, and that the verdicts were consistent with the evidence. The court also found that the acquittal on the rape charge did not render the other convictions unsafe or unreasonable. As a result, leave to appeal was refused.

Orders